Thursday, Aug 25 2011
• 10 a.m. (ET)

Conflict of interest on the Supreme Court

The Supreme Court is the final arbiter of legal justice in America. It has immense power over our lives. It is essential that it’s ethics and impartiality are unimpeachable. But now the looming battle over the federal health care law which is likely to make it to the supreme court before the end of the year is raising concerns over the potential, or at the very least, the “appearance” of a conflict of interest on the court. Justice’s Clarence Thomas and Elena Kagan are both facing calls to recuse themselves from proceedings should the law make it to the court. If they don’t, critics says the reputation of the court could be affected for years to come.

Guests

Sherrilyn Ifill
professor, University of Maryland School of Law, co-founder of the Reentry of Ex-Offenders Clinic and author of "On the Courthouse Lawn."

Jeffrey Toobin
staff writer at The New Yorker; senior legal analyst for CNN, author of "The Nine: Inside the Secret World of the Supreme Court" (Doubleday), and former Assistant U.S.Attorney in Brooklyn, New York.

Jeffrey Rosen
professor of law at the George Washington University and legal affairs editor of "The New Republic." He's the author of "The Supreme Court," "The Most Democratic Branch," "The Naked Crowd," and "The Unwanted Gaze."

Transcript

10:06:54

MS. DIANE REHMThanks for joining us. I'm Diane Rehm. The health care reform bill has not even made it to the Supreme Court yet, but two justices are already being accused of conflict of interest. Here with me in the studio to address whether it's time for a code of conduct at the highest court in the land, Jeffrey Rosen of George Washington University and Sherrilyn Ifill of the University of Maryland Law School.

10:07:30

MS. DIANE REHMOn the line from New York City, Jeffrey Toobin of The New Yorker magazine. I do invite your calls, comments. Join us on 800-433-8850. Send us your email to drshow@wamu.org. Join us on Facebook or Twitter. Good morning to all of you.

10:08:00

PROF. SHERRILYN IFILLGood morning.

10:08:00

PROF. JEFFREY ROSENGood morning.

10:08:00

MR. JEFFREY TOOBINHi, Diane.

10:08:01

REHMJeffrey Toobin, let me start with you. Why have these calls for recusals for two justices -- why are they being raised now?

10:08:15

TOOBINWell, I think it's a symptom of the Washington obsession with turning substantive disagreements into supposed ethical transgressions. When you have liberals trying to get Thomas off the health care case, you have a very small number of conservatives trying to get Justice Kagan off the case. And I think both are silly. I think both should be on the case. I think there is no ethical problem with either of them participating.

10:08:43

TOOBINBut I think it's misleading to think that this has any origin except in the substantive, the presumed substantive views of the justices involved.

10:08:57

REHMSherrilyn Ifill, there are calls to -- for Clarence Thomas to recuse himself based on the fact that his wife's work as a lobbyist, some say, creates the appearance of conflict of interest. What are your thoughts?

10:09:19

IFILLWell, the appearance standard is -- was created to ensure that the public would have confidence in the judiciary, that we worry not only about judges being actually biased in a particular case, but we also worry about the appearance of bias. And the calls for Justice Thomas' recusal actually, really, are part of a much larger and longer controversy about this issue of ethics in the Supreme Court.

10:09:46

IFILLAnd I have to disagree with Jeffrey Toobin on this, that it's unfortunate that we're reviewing this now in the context of the health care reform debate. But, actually, since 1972, we have visited and revisited this issue of recusal on the Supreme Court and the lack of standards that govern the Supreme Court's conduct when it comes to recusal, particularly in cases in which there might be the appearance of impropriety.

10:10:13

REHMAnd to you, Jeffrey Rosen, Elena Kagan is also in that same position. There have been calls for her to recuse herself from any consideration of the Affordable Care Act because of her previous association with the Obama administration. What are your thoughts?

10:10:40

ROSENThere are these calls. Conservatives are stressing that at her hearing, Kagan was asked by Sen. Coburn, was there any time you were asked in your present position to express an opinion on the merits of the health care bill? And she said there was no time. But The Wall Street Journal is noting that the question was unfortunate 'cause he referred to the merits of the bill and didn't ask whether she'd offer any legal opinion on the bill.

10:11:02

ROSENAnd some conservatives are claiming that if she did offer a legal opinion, she should recuse herself. Now, it's true that this is unlikely to go very far. She's unlikely to heed these calls. And what's so interesting -- maybe the way of reconciling the position of Jeffrey Toobin and Prof. Ifill is to say we understand why these calls are more intense now.

10:11:25

ROSENIn a post-Watergate era, it makes no sense that the Supreme Court, alone of all courts, should be exempt from the same rules that are imposed on other judges. But it's striking how fiercely the justices are resisting calls to impose this cut on themselves. I moderated a panel this summer with Justice Breyer and Justice O'Connor.

10:11:42

ROSENAnd they were asked point-blank by a member of the audience, basically, should someone recuse himself when his wife might benefit financially from a case? This is what Justice Breyer said -- he called it a false issue. He said, I feel strongly that a wife or husband is independent person who should make up their own minds about what their career is going to be. And he said that if justices did recuse themselves, it's different than other courts.

10:12:03

ROSENThere's no one else who could replace them, and that could switch the vote. And, therefore, he said, I think the fact that my wife is a clinical psychologist, I sit on cases involving clinical psychology. If you understand the duty to sit as well as the duty to recuse and the independence of spouses, these cases are a lot tougher. So I think that the justices themselves are not going to be sympathetic to these calls.

10:12:22

ROSENAnd the only question is, is Congress going to act? Congressman Murphy has proposed a bill that would require this code of conduct to be imposed on judges. And there may be more support for this sort of move.

10:12:32

REHMIs that the way you think it ought to be, Sherrilyn Ifill, that you have this come from the Congress as opposed to coming from outside calls?

10:12:45

IFILLYou know, I actually think the way it ought to be is that the court ought to be willing to police itself because Congress, in fact, did act. In 1972, in a case called Laird v. Tatum, then-Justice Rehnquist refused to recuse himself from a case involving the army surveillance of individuals involved in protest, even though, when he had been assistant attorney general for the United States under President Nixon, he had testified before a congressional committee about the precise issue that was in controversy in Laird v. Tatum.

10:13:17

IFILLHe refused to recuse himself from that case. And many people believe that that is the reason that Congress, in amending 28 U.S.C. 455 (a), included the standard that judges should withdraw from cases in which their impartiality might be questioned. In other words, the appearance of impartiality would be just as, in part, important as actual bias. That was Congress acting. And so Congress acted.

10:13:41

IFILLThat statute, by the way, covers the Supreme Court, and yet we still have these controversies. What's most disappointing, I think, is the failure of leadership, first with Justice Rehnquist, now with Chief Justice Roberts, to take this issue on, to compel their colleagues to say, we ought to be in the position ourselves of coming up with a framework that is transparent as it relates to what our connections are and when we recuse ourselves from cases and that is consistent across the nine justices.

10:14:10

REHMSherrilyn Ifill, she is professor at the University of Maryland School of Law, co-founder of the Re-entry of Ex-Offenders Clinic and author of the book titled "On the Courthouse Lawn." Do join us, 800-433-8850. Jeffrey Toobin, what about that, the difference between congressional action or self-policing?

10:14:40

TOOBINWell, I think Prof. Ifill makes a good point. I think it's probably better if the court just establish some rules. But I have to say I really just don't think this is a very big problem. I don't think the justices are behaving in an unethical manner. I think it is significant that the last time there was a legitimate controversy over this -- and it was a legitimate controversy about then-Justice Rehnquist's participation in Laird v. Tatum. I mean, that was 1972.

10:15:11

TOOBINThat was a long time ago. I just think the justices by and large do a good job of self-policing. I think it would be better with a rule that was more transparent. But, you know, I also think, you know, if ain't broke, don't fix it. And I am not really worried about the ethics of the Supreme Court very much.

10:15:32

REHMWhat about Bush v. Gore, Sherrilyn?

10:15:34

IFILLWell, not only Bush v. Gore. Obviously, that's the case that many people remember. Many people should also remember the Dick Cheney-Justice Scalia duck hunting case, which -- in which Justice Scalia felt he should write a 22-page memorandum opinion explaining why he would not recuse himself from a case brought by the Sierra Club Legal Defense Fund against Vice President Cheney.

10:15:56

IFILLThis was after it was reported that the two had gone duck hunting together, and a recusal motion was filed by the Sierra Club asking Justice Scalia to withdraw from the case. He refused to do so. In 2000, in the case -- the government's anti-trust case against Microsoft, Justice Rehnquist refused to recuse himself from that case, even though his son was a lawyer for Microsoft in a variety of private anti-trust matters.

10:16:21

IFILLThere have been controversies in cases over the years that extend all the way back to 1972 and that involved many justices. And what's most disturbing is the hodgepodge of approaches that different justices have to this issue. Justice Stevens in one case, for example, recused himself because his niece was a counsel on a case that came to the Supreme Court, even though that's not required by the rules.

10:16:45

IFILLSo judges are making up their -- justices are making up their mind in different instances. And there's no consistency. Thurgood Marshall, for a long time, recused himself from cases involving the NAACP Legal Defense Fund up until 1989, almost 30 years after he had left the legal defense fund. And yet there's nothing in the rules that suggests he had to do that.

10:17:06

REHMJeffrey Rosen.

10:17:07

ROSENBush v. Gore is a very interesting example that shows how complicated this is. The ethics complaint that was filed was that Justice Scalia should have recused himself because one of his sons was involved indirectly in the case. But, of course, any benefit the son might have received was far less dramatic than that that the justices themselves received by essentially deciding the election and appointing their own successors.

10:17:28

ROSENThe truth is that in politically charged cases, which is most cases the Supreme Court decides, you can come up with an accusation of political conflict in almost any of them. And there is a fear that the recusal motions would be used for partisan advantage, and people would request the removal of a justice like Thomas or Kagan nearly to switch the result of the case. That said, I'm not sure that this situation is sustainable for forever.

10:17:50

ROSENAs Prof. Ifill says, there's a perception of unfairness that the court alone is immune from these rules. At the very least, some sort of more consistent rules of disclosure and explanation might help because the fact that Justice Scalia waited until there was a media firestorm to file this extremely peevish and defensive account of his action suggests that it might be better in whenever there's some sort of concern raised to require at least some sort of public explanation.

10:18:14

10:18:28

ROSENI think the concern was that, as justice Breyer said, if lower courts -- there's an accusation of conflict, another judge can step up to replace. In the Supreme Court, there are only nine. You can't have any replacement, and, therefore, a recusal could actually shift the results of particular cases.

10:18:42

REHMJeffrey Rosen, professor of law at the George Washington University. When we come back, we'll talk further, take your calls, comments.

10:20:03

REHMThis issue of recusal of members of the court in regard to issues where they seem to have particular interest certainly raises questions among our listeners about faith in the court generally. Kathleen on our homepage writes, "Few Americans have any faith in the impartiality of the U.S. Supreme Court. The 2000 U.S. Supreme Court presidential selection confirmed our suspicions then, the corporations are people decision.

10:20:48

REHM"Who has any faith left in their conduct and in their decisions?" Jeffrey Toobin, what about that, the concern that people across the country have about the court, generally speaking, and how this question of recusal really highlights that concern?

10:21:13

TOOBINI think it's important to draw a distinction between disagreement with Supreme Court justices and Supreme Court opinions on the merits and accusations of unethical or somehow improper conduct. I mean, I think it is perfectly appropriate to disagree with Supreme Court opinions. I've been boring people for a decade with my outrage about Bush v. Gore, but I don't think there was anything unethical about it.

10:21:39

TOOBINI don't think the justices had a conflict of interest. I think the majority was just wrong. And I think it's just important to keep people's attention focused on the merits and the results and the substances of decisions rather than trying to find some sort of improper motive or conduct. I just think that is very rare that there is something improper, but it is not rare to disagree on the merits. And I think that's -- that should be the focus of people's attention.

10:22:08

REHMJeffrey Rosen.

10:22:10

ROSENThe liberal justices in Bush v. Gore almost, themselves, accused the conservative justices of bad faith. They said you'd have to believe that the Florida court was trying to steal the election in order to reach this result. And that sort of cynicism, basically, might mask some sort of self-interest. Now, the polls after Bush v. Gore were interesting. They suggested that, right after the decision, the legitimacy of the court among Democrats plummeted.

10:22:33

ROSENIt had been something like 70 percent. It went down to 30. Among Republicans, it soared up to 80. But, interestingly, a year later, after 9/11, the numbers were back to basically where they've been before, 50/50. So what does that suggest? The public has a short attention span. They may be very disappointed about a particular recusal or decision, but, in time, they get distracted by other things.

10:22:53

REHMSherrilyn Ifill, what about just being wrong versus an improper motive?

10:23:00

IFILLYou know, in my many now-decades of being a civil rights lawyer, I have noted that my clients are actually quite able to make that distinction. And what they always want is their shot before the court. They know which justices are liberal. They know which justices are conservative. They'll know this on the courts of appeals. What they want to believe is that they're engaged in a system that's fair.

10:23:23

IFILLAnd even if they lose, even if they don't like the outcome, they will accept it, as we all do, because we believe in the legitimacy of the system. And that's why we have to not commingle this question about substance with the question about what the proper procedure should be for the Supreme Court as it relates to questions of ethics and the appearance of bias.

10:23:44

IFILLAnd when we do it, then we end up having the kind of conversation that we're having now, where it's partly about, like, are you for health care reform, or are you against health care reform? But I need to suggest that that's not what it's about, that, for more than 30 years, we've been grappling with this issue in a variety of cases, many of which the public knows about, and some of which the public, except for a very small segment, does not know about.

10:24:05

IFILLAnd in every instance, it raises this question of why the highest court in the land, why the highest court among, you know, all of the courts in the United States, does not conduct itself by a set of uniform procedures by which the public can determine when or if a justice might have some connection with a case that, by the way, to the public, to the reasonable person, because that is the standard of the recusal statute.

10:24:31

REHMHow would you draft such procedures?

10:24:35

IFILLWell, the first thing, I think, that the court needs is to appoint a commission to study this question, to provide some suggestions. There have -- I've written about this, and others have written about it as well. There are a number of suggestions. I mean, obviously, one is to make the Code of Judicial Conduct apply to the Supreme Court. By the way, I would, you know, make that distinction. The recusal statute does apply to the Supreme Court.

10:24:56

IFILLThe Code of Judicial Conduct does not. So that's one possibility. But as many people say, it's the Supreme Court. Who's going to enforce it? There's no place to appeal to, even if you don't like the ultimate decision that justices on the court make.

10:25:08

IFILLSo other suggestions might be that retired justices might be used to review recusal petitions or to serve as -- on an advisory panel to the Supreme Court, that there might be special masters -- that is, legal ethicists -- who might be on a panel that court justices can refer to when recusal petitions come in, and would only issue advisory opinions, but those opinions would be public and transparent.

10:25:33

REHMWhat do you think about that?

10:25:34

TOOBINCan I ask a question?

10:25:35

REHMSure, Jeffrey. Go ahead.

10:25:37

TOOBINI would just like to ask Prof. Ifill a question, and I ask this out of genuine curiosity. Under your rule that you would like to see imposed, what would you do about Justice Thomas and the health care case? His wife is obviously an outspoken opponent of the law. Is that something, in your view, that requires recusal?

10:25:55

IFILLWell, I wouldn't answer the question because I'd have to get all over the facts. But having read your very good piece in The New Yorker, I would say this. One of the most disturbing things, I think, about Justices Tom -- Justice Thomas and the health care case and his wife's actions is not just what she has done, but the statements that he made -- at least as I read in your New Yorker piece -- that appear to go out of his way to support her recent work around this Tea Party effort.

10:26:23

IFILLAnd this disturbs me because if you read the Code of Judicial Conduct -- which, I understand, does not apply, at this point, to the Supreme Court -- it makes it very clear that federal judges should expect to refrain from the kinds of activities that the regular public can involve themselves in, and should refrain from making the kinds of statements that people in the public can make, and that judges should see this as a privilege to serve and, therefore, should do so, the code says, freely and willingly.

10:26:52

IFILLAnd so I think that, frankly, Justice Thomas should freely and willingly refrain from making the kinds of statements that you set out in your New Yorker piece, in which he appears to deliberately try to encourage this sense that he is a supporter of his wife's Tea Party work.

10:27:08

REHMJeffrey Rosen.

10:27:09

ROSENAs Prof. Ifill puts it compellingly, the real case against Thomas then is not his wife's activity, but his own statements. And if that's to be a possible grounds for recusal, we're going to see an awful lot of motions because this is an era when the justices are talking a lot more. The norms of exposure are being transformed.

10:27:24

ROSENYou have Justice Scalia giving speeches about Guantanamo. Justice Breyer, during these panels that I moderated, was very frank about his views about Internet violence and so forth. The question is, is it tenable for the justices, who used to be anonymous behind black robes, suddenly to be demanding the entitlement to speak freely about current affairs, to be encouraged to do so by the press, and then to be shocked when suddenly they're treated like all other public officials and their impartiality is called into question by their statements?

10:27:54

ROSENMy instinct is, although I -- I think it's a really tough problem. I sympathize with Prof. Ifill's suggestion that something has to be done, that to actually have a formal process where the simple allegation of impartiality could trigger a big investigation would just tie the Supreme Court in knots because, in almost every case, there would be stuff like this.

10:28:12

ROSENBut I very much agree with her that the justices should stop talking so much and behave more like judges and respect their position. We don't really need to know their opinions...

10:28:22

REHMSherrilyn.

10:28:23

IFILLWell, see, this is the difficulty because, of course, anybody who's ever practiced law knows that we take the idea of filing a recusal motion very seriously. It's not something that lawyers want to do. And, certainly, a lawyer who's made his way into the Supreme Court for one of the 85 or so cases that they take a year is going to think very carefully about whether they file a recusal motion.

10:28:44

IFILLAnd it's for this reason that the Supreme Court should hold itself to an even higher standard because it is unlikely that a party will file a recusal motion.

10:28:53

REHMJeffrey Toobin, what did you think of Sherrilyn's response to your question?

10:28:59

TOOBINWell, first of all, I wanted to thank her for saying nice things about my New Yorker story. But I guess I really, at the end of the day, disagree with her. I think it's a good thing -- and I guess I disagree with Jeff about this -- that I think it's a good thing that the justices are out there more often, speaking about law in at least general ways. And, you know, Virginia Thomas has been a political activist for decades, since before she met Clarence Thomas.

10:29:27

TOOBINThis is her job. This is what she does for a living. And I think she should be allowed to do that. And her husband's basically general words of support for her as a person, rather than sort of explicit support for her cause -- I would err on the side of letting the justices continue to participate. I recognize that, you know, without a clear standard, it's hard to make these judgments. And perhaps there should be a standard.

10:29:56

TOOBINBut, at least, as I understand the standards now, I don't have a problem with Thomas participating in health care reform, or Kagan.

10:30:05

REHMAll right. Here's a posting from George on Facebook, who says, "The Supreme Court is much more partisan than it should be for a healthy democracy. Some of the decisions in the past decade or so are hard to understand from a simple reasoning perspective, such as the corporations are people." Jeffrey Rosen.

10:30:34

ROSENYou know, it's a very interesting question. Is the Supreme Court more partisan, or does it appear more partisan because it's more transparent? When you think about the ethics scandals and the partisan divides in the 20th century, they make our current disputes pale. Back in the 1940s, you had Justices Black and Jackson sniping at each other from Nuremberg about personal conflicts of interest.

10:30:53

ROSENJackson said Black should have recused himself in a case -- it was 5-4 -- because his law partner was involved. They accused each other of unethical behavior. You know, from the earliest days of Marbury v. Madison, you had, Chief Justice Marshall sitting in a case where he actually was responsible for the mess that had given rise to the dispute in the first place, and the partisanship was very high.

10:31:14

ROSENI think the difference is not the actual substance of the decision or the unethical behavior, but the fact that we expect much more of public officials. We're looking at the court much more closely than we ever did, and that's the question. How can the court respond to this new transparency? Can they really expect the old difference that they're not getting anymore?

10:31:31

REHMSherrilyn.

10:31:32

IFILLWell, one way the court can respond is by engaging in at least some limited transparency, the fact, for example, that justices on the Supreme Court are not required to issue written opinions, explaining either why they will not recuse himself from a case when a recusal motion has been filed or why they have decided to recuse himself from a case. Justice Scalia's opinion in the duck hunting case was unusual.

10:31:53

IFILLIn fact, we should credit him with writing the 22-page opinion, which I think he only wrote after the firestorm had developed and had become the subject of late-night jokes. Justice Rehnquist and Justice O'Connor routinely would write opinions explaining their recusal decisions. Justice Souter almost never did.

10:32:08

IFILLI mean -- so we have this hodgepodge on the Supreme Court in which individual justices are making decisions about whether they will even explain their decision to stay on a case or not. Why can't we have a rule, you know, impose -- self-imposed by the Supreme court that requires them to at least disclose, to respect the public enough to disclose the reasons for their decision on a recusal case?

10:32:31

REHMHave the calls for recusals risen dramatically since the 2000 case of Bush v. Gore, Sherrilyn?

10:32:43

IFILLI don't know. I've actually started to look at this in the years first after Bush v. Gore. And what you discover when you look at Supreme Court cases is that there are actually quite a few recusals. Many of them have to do with the Supreme Court -- justices on the Supreme Court themselves recognizing their financial connection with defendants.

10:33:02

IFILLThere was one very, you know, kind of shocking case a few years ago brought by survivors of apartheid in South Africa suing under the Alien Tort Claims Act in New York. And the case went to the Supreme Court. And the Supreme Court could not decide the case because they could not get a quorum of justices because so many of the justices had financial connections to the defendants in the case.

10:33:22

REHMSherrilyn Ifill, she is professor of law at the University of Maryland School of Law. And you're listening to "The Diane Rehm Show." We're going to open the phones now, 800-433-8850. First to Drew in Cincinnati, Ohio. Good morning to you. Go right ahead.

10:33:48

DREWOh, good morning, Diane. It's a joy to speak with you.

10:33:51

REHMThank you.

10:33:51

DREWMy comment is, well, in such a fiercely divided country that we have, we know that judges, when elected, are somewhat known to be liberal or conservative. So, of course, on a hot-button issue, such as, like, health care, an extremely bipartisan issue, you already have, like, the partisan lines on which to build your arguments, like, for both sides.

10:34:14

DREWAnd with such an unfortunately, yet rightfully, cynical nation, there will always be these sort of accusations. And it's impossible to avoid this sort of argument. The judges are and cannot help be biased in some ways, I mean, 'cause they are human after all.

10:34:32

REHMJeffrey Rosen.

10:34:34

ROSENIt's interesting. I wonder whether we really should expect the court will divide on partisan lines in the health care case. In his excellent piece, Jeffrey Toobin suggests that Justice Thomas is within reach of getting a majority to strike down health care. I'm not so sure. When I look at the conservative justices on the court, they have very different judicial philosophies.

10:34:51

ROSENCertainly, Thomas, the Tea Party justice, Kennedy, the libertarian, might be inclined to strike down health care. But the three other conservatives -- Roberts, Scalia and Alito -- are very strong proponents of executive power. Their past opinions have embraced an expansive vision of Congress' authority to pass this sort of economic regulation. So it might well be the case that you have a lopsided majority for upholding it.

10:35:10

REHMInteresting.

10:35:11

ROSENAnd in that case, all this focus on ethical behavior, Thomas' wife and so forth, distracts us from the more important consideration, which is ideology. These justices, ultimately, are moved by their traditional ideologies and philosophies, more than the fact that they go to cocktail parties where their friends are, you know, interested in profiting concerns.

10:35:27

REHMGo ahead, Jeffrey.

10:35:29

TOOBINWell, I just think, you know, what Jeff is saying is so right in the sense that, you know, these issues that the Supreme Court deals with are substantively very complicated and difficult, and justices develop approaches to them. I mean, you know, does the Constitution protect a woman's right to choose abortion? You know, is -- may a university use race in admissions? I mean, I don't think the Constitution answers those questions simply by reading it.

10:35:55

TOOBINYou need a judicial philosophy, and they all have different philosophies. And you can predict, usually with some precision, but we're often wrong, how they will see a given issue. But there is nothing wrong with having a judicial philosophy. There's nothing unethical about having an approach to these issues, and they all do. But -- that's why I am so reluctant to see these issues as ethical, as opposed to ideological.

10:36:25

TOOBINAnd, you know, ideology is always going to be present. And when people say, oh, isn't it too bad the court is so partisan? And it's so -- you know, I wish they could just reach a legally correct answer. It's impossible. There is no way to reach these decisions, except through applying an ideology about what the Constitution means and how it should be read.

10:36:45

REHMSherrilyn.

10:36:46

IFILLYou know, I think we're forgetting the fact that the ethical rules, the requirements for recusal and the model code were not created to help the judges or the justices, nor were they really created to help those of us who are part of the legal profession. They were designed to help the public and to help the public have confidence in the judiciary, which helps us all because it maintains the legitimacy of the judiciary.

10:37:09

IFILLThat's why the standard is, what would a reasonable person, knowing all the facts, think? Would they think that this judge's impartiality could be questioned? It's not a question of whether or not there's actual bias. There's the question of what would the average person think, and that may be very different than what a Supreme Court justice thinks.

10:37:26

REHMSherrilyn Ifill, she is at the University of Maryland School of Law. Jeffrey Rosen at George Washington University and Jeffrey Toobin, staff writer at The New Yorker. We'll take a short break and be right back.

10:40:03

REHMAnd Gary on Facebook has this to say, "Keep politics as far away from the court as possible. The SCOTUS has not been unaffected but is still less infantile than the Congress in the past three administrations." Let's go now to Chip in Houston, Texas. Good morning. You're on the air. Chip, are you there? Nope, not. Let's go to St. Louis, Mo. Good morning, George.

10:40:41

GEORGEOh, hi. Thanks. It seems to be the question here -- and I've spent time on a faculty in law school myself -- is this is a really a fig leaf for, really, partisanship. You know, Prof. Ifill, you raised some interesting points, but I think one thing that's missing from this whole conversation is, what about Thurgood Marshall? You know, he was heavily involved in the civil rights movement.

10:41:03

GEORGEAnd then NAACP said he has been excluded from all race-based cases or cases on which the NAACP took a position. What about Ruth Bader Ginsburg with the ACLU? Same type of thing. I don't think they should be, and I agree with the other professors that, you know, this is not really something we should pursue.

10:41:25

GEORGEIn fact, I think pursuing it, you know, when the public who don't understand so much of the technicalities of ethics and the law and the way decisions are made, when they hear this kind of controversy, it just adds to the cynicism in the public. And it's so much driven by politics. You know, right now, we see this, you know, Clarence Thomas' conflict -- you know, the right to just as well say Elena Kagan and Ruth Bader Ginsburg should, you know, should not reply in anything.

10:41:57

REHMAll right. Thanks for your call.

10:41:59

IFILLWell, the caller actually really reinforces my point. Thurgood Marshall became solicitor general in 1961. And, well into the 1980s, he was continuing to recuse himself voluntarily from cases involving the NAACP Legal Defense Fund when they appeared before the court, including cases in which they were seeking certiorari.

10:42:16

IFILLIf we compare that to Justice Rehnquist and his refusal to recuse himself in 1972 from Laird v. Tatum, when only two years before, he had been an assistant attorney general in the Nixon administration speaking out in favor of that particular army action, we find that there is -- you know, there's no consistency.

10:42:34

IFILLSo Thurgood Marshall may have bent over backwards. Rehnquist may not have bent over far enough. And, therefore, I'm suggesting that what we need is some kind of consistent rule that the Supreme Court uses to govern itself so that all nine members will hold themselves to the same standard, something, I think, the public understands and wants and is not the stuff of arcane legal professors in academics.

10:42:55

REHMTo Middletown, R.I. Good morning, Kyle.

10:42:59

KYLEHi. Good morning, Diane. Thanks for taking my call.

10:43:01

REHMSure.

10:43:01

KYLEI have just a statement, less than a question. I just find it kind of amazing and somewhat disheartening. I'm a mid-grade military officer, and we are held to such a high standard of behavior and expectations of our conduct. And it's just -- I was just amazed to learn that the Supreme Court justices don't have some sort of standard they have to follow themselves.

10:43:21

KYLEI'm not allowed to speak in public on political matters. My wife is expected to behave in certain ways as the wife of an officer. And it just seems unreal to me, almost, that the Supreme Court justices don't have that same standard of behavior.

10:43:33

REHMJeffrey Toobin.

10:43:35

TOOBINWell, I guess I am less worried about that problem than other people. I think that the justices conduct themselves in a very appropriate way. I have not heard, since I've been following the court, anything any of the justices said that suggested they were behaving in unethically, inappropriate way. You know, they have opinions on issues, and I think it's interesting and important to hear what they are.

10:44:04

TOOBINBut, I guess, I will save my outrage for what they actually write as their decisions rather than any kind of behavior I've seen them engaged in, and that includes Scalia's failure to recuse himself. I thought he was right. I was very persuaded by his opinion explaining why he didn't recuse himself. I just think they have behaved in an honorable way.

10:44:28

REHMJeffrey Rosen, let me ask you about another problem with recusal. Couldn't it create the possibility of a tie?

10:44:39

ROSENIt certainly could, and this was a major concern with Justice Kagan, who recused herself from more than 50 cases this year because she had advised the government as solicitor general in the event of a tie, then the lower court decision is affirmed. So there are huge partisan consequences. Now, I don't think that happened with Kagan this year. But as Prof. Ifill said, it actually has changed the results of cases in the past.

10:45:02

ROSENIt strikes me. One thing that we haven't quite pinned down is what should the standard for recusal be? Jeffrey Toobin is arguing, you know, pretty powerfully. It should just be...

10:45:13

REHMTheir own conscience.

10:45:13

ROSEN...their own conscience and, presumably, if they were financial and propriety alleged, like Justice Fortas, who took an honorarium from a litigant and later had to resign. But short of that sort of quid pro quo corruption Jeff Toobin is suggesting, the mere appearance of impropriety shouldn't be a ground for disqualification. On the other hand, that's not what the law said.

10:45:31

ROSENAs Prof. Ifill said, the federal code, which does apply to the Supreme Court, in any case in which impartiality might be reasonably questioned, the judicial code imposes this appearance of impropriety standard. And as the last caller powerfully suggested, people in every aspect of government are held to this appearance of impropriety standard. We may not like it, the legalization of ethics that's proliferated in the post-Watergate era.

10:45:53

ROSENBut it is increasingly hard to defend the idea that the highest court in the land, alone among all public officials, should be immune from the same standards that everyone else has to follow.

10:46:00

10:46:08

MORRISOh, thank you, Diane. I just want to follow up on your last caller's comment. I'm a retired military officer. I'm a law professor at Howard. And as he said, we did have a standard of conduct where the conduct of a spouse is imputed to the officer. And when I would do ethics briefings, spouses would be upset. They couldn't sell Amway and do those kinds of things. And I told them they have a right to do whatever they want.

10:46:29

MORRISBut their husband, the military spouse, it's a privilege for them to serve, not a right. I think the same applies to the court. Ms. Thomas is free to have her opinions or to earn her income however she wants. But Justice Thomas, it's a privilege to serve for him. It's not a right.

10:46:46

REHMSherrilyn.

10:46:47

IFILLWell, I think that caller has succinctly stated precisely what most, I think, of the public thinks about the Supreme Court service, that it's a sacrifice to be made, and the Model Code of Judicial Conduct suggests that it's a sacrifice that judges should make freely and willingly. I will say that the justices themselves know that there are issues that are associated with recusal that need to be resolved.

10:47:07

IFILLFew people remember that, in 1993, seven of the justices issued a statement of recusal policy. That's what it was called. And in that statement, it was directed solely at how justices would resolve the question of recusal when one of their children or their spouses was a partner in a law firm that was appearing before the court.

10:47:27

IFILLAnd, essentially, the rule was that they would recuse themselves from a case unless they received a written statement from the firm, that their relative would not receive financial benefit from the Supreme Court litigation. Now, while I appreciate the Supreme Court having even issued the statement, I'd say a few things that showed the problem. One, the court's focused on financial gain. That is not the only measure of connection.

10:47:51

IFILLObviously, a firm that wins lots of cases in the Supreme Court gets a reputational benefit that enures to everyone in the firm, and so it's not just financial. Secondly, the statement was only signed by seven of the justices. Justice Blackmun and Justice Souter would not sign it. So even then, you didn't have unanimity about this question of recusal where there's a member of the justice's family who's part of the law firm.

10:48:17

IFILLWhy is it that the Supreme Court can't come together around this set of issues? And why should we have seven justices who signed on to a policy, two who don't? Why should we have some justices who recused themselves in certain instances and others who don't? We need consistency.

10:48:32

REHMAll right. And to DeKalb, Ill. Good morning, Thomas.

10:48:38

THOMASGood morning. And thank you for taking my call.

10:48:39

REHMSurely.

10:48:40

THOMASI think the time has come for term limits for Supreme Court justices. And I'd like to hear what your guests have to say about term limits for Supreme Court justices. Thank you. And I'll take my answer off the air.

10:48:50

REHMJeffrey Toobin.

10:48:52

TOOBINWell, you know, that's a really interesting question. The Constitution was written in the late 18th century when people more or less were expected to die in their 50s because that's sort of what life spans were. Now, of course, fortunately, we can expect people who are of Supreme Court-type background to serve for 30 years. And, you know, we don't like it when people serve for 30 years.

10:49:14

TOOBINI once heard Justice Breyer give a very interesting answer to this question, and he said, you know, I don't really have a problem with term limits or mandatory retirement. But you have to arrange it so that the Supreme Court is your last job. You can't have Supreme Court justices ruling on cases while angling for something else down the line. And I thought that was an interesting insight.

10:49:37

TOOBINAnd, you know, I think the time may come when an amendment to the Constitution that suggests term limits or mandatory retirement is a realistic possibility. So I expect we'll hear more about this in the future.

10:49:53

ROSENIt is a funny observation. Of course, Justice Douglas spent most of his 40 years on the court running for president. Thomas Corcoran said he wanted to be president more than Don Quixote wanted Dulcinea.

10:50:04

ROSENSo the idea that the Supreme Court is a final resting place is a new and rather haughty idea.

10:50:09

REHMAll right. To -- but what do you think of the idea?

10:50:14

ROSENI'm all for term limits, in theory, for the reasons that the caller and that Jeff Toobin suggest. The trouble is, of course, it's very hard to pass a constitutional amendment. And trying to come up with a bipartisan solution that would time it that was fair to both sides may, in practice, be very, very difficult.

10:50:28

REHMSherrilyn.

10:50:29

IFILLI think that the framer's thought and many people in this country think that lifetime tenure is actually one of the things that is most admirable about the Supreme Court, that it is designed to ensure that we have a court that is not subject to outside influence, that is not angling for another job and that can't be muscled by Congress in any way. And so I think we ought to think carefully before we abolish lifetime tenure.

10:50:49

IFILLI think the problem is that we want to be very careful that we make sure that we compensate Supreme Court justices in such a way that they're not angling for anything thereafter and that we create a code of conduct that suggests to the justices that they ought to know when it's time to go.

10:51:05

REHMTo South Haven, Mich. Good morning, Mike.

10:51:10

MIKEGood morning, Diane. Thank you for taking my call.

10:51:11

REHMSure.

10:51:12

MIKEI just wanted to comment concerning the idea that the justices should police themselves. And it's obvious to me that they're simply not going to do it. Therefore, I do believe that Congress should act. The other thing is that I do believe that their individual political ideologies do come into play in their decisions. Let's take -- and -- honest when it comes to that. Let's take Chief Justice Roberts.

10:51:38

MIKEWhen he told Congress, during his hearings, that he believed in (unintelligible), and he hasn't really followed that as he stated he would. And I'll just listen off air. Thank you.

10:51:50

REHMSherrilyn.

10:51:51

IFILLWell, first of all, there is such a bill in Congress, H.R. 862, which would purport to make the Supreme Court justices subject to the Code of Judicial Conduct and would also require certain -- the disclosure of certain information regarding conflicts. And I have to agree with this part of the caller's remarks, which is that if the court won't police itself -- I think this is something that may not happen this year, but at some point it will happen in the future.

10:52:13

IFILLAnd although some people say, how would you enforce it? There's a separation of powers question. Congress really cannot muscle the Supreme Court. The mere fact that it exists would create a framework. And a justice refusing to comply with it, I think, would be fairly controversial. But with regard to, you know, justices and whether or not they're biased, I think, again, this goes to the question of substance.

10:52:32

IFILLThis goes to the confirmation process, which is a whole other set of questions. And I think it's very important that we separate out the set of questions that we're talking about today, about recusal and ethics, because that's the framework that diminishes the ability, I think, of justices to engage in conduct that makes the public respond in the way that some of the callers are responding.

10:52:53

IFILLAnd everyone, including Supreme Court justices, needs some suggestion of how they ought to behave. That's why we have laws. That's why we have codes of ethics. That's why the military has the rules that some of the callers have talked about. And I think it would do well for the Supreme Court as well.

10:53:08

TOOBINAnd since we're talking...

10:53:08

REHMSherrilyn Ifill, she is professor of law at the University of Maryland School of Law. And you're listening to "The Diane Rehm Show." Jeffrey Rosen, assuming that health care reform does end up before the Supreme Court, how damaging could it be if these questions about recusal keep coming into the public's mind?

10:53:39

ROSENA 5-4 decision striking down health care would be tremendously damaging. It would be an extraordinarily aggressive and -- it would be perceived as a very aggressive and partisan thing for the court to do -- the opposite of what Chief Justice Roberts promised when he came into office, saying he wanted narrow, unanimous opinions that both sides could converge around, and would only appear more partisan in light of these claims on both sides that had been raised.

10:53:59

ROSENNow, we've seen these sort of decisions before. We've talked about them -- Bush v. Gore, Citizen United. But what's new now is that the ideological partisanship is combined with allegations of ethical impropriety. And that might make it tougher and tougher for the court to maintain public legitimacy.

10:54:13

REHMJeffery Toobin.

10:54:17

TOOBINYou know, the Supreme Court is a resilient institution. And as Justice Jackson famously said about the court, we are not final because we are infallible. We are infallible because we are final. A lot of people will be upset if they strike down health care reform, but the Supreme Court is still going to be sitting the following day and the following year.

10:54:31

TOOBINAnd as the Bush v. Gore illustration shows, the court bounces back from criticism. And I expect that would happen regardless of what they do in the heath care case.

10:54:44

REHMSheryl.

10:54:45

IFILLI think that, after a while, it becomes a war of attrition, though. And as we continue to have these cases come in to the public eye, I think we're going to begin to see diminished levels of public approval for the Supreme Court. And that's why this is an issue not just about the health care reform debate or case, but about the long-standing question of rules and practices regarding recusal on the Supreme Court.

10:55:04

REHMAll right. Final caller from Maples, Fla. Good morning, John. You're on the air.

10:55:10

JOHNThank you, Diane. I'll be extremely brief. I don't believe you can compare Ms. Kagan's work for the government in her job with Thomas' wife taking $100,000, maybe million of dollars from conservative organizations. I don't believe that anyone could possibly see that gay marriage isn't constitutional when a person has the right under the 14th Amendment to marry another person, not a monkey as Bill O'Reilly would say.

10:55:31

JOHNFinally, the Tea Party is racism. Ask any Tea Partier, they'll say that they voted for Obama 'cause he is black. Ask them who they is, they'll say black people.

10:55:40

REHMAll right. Thanks for your call. Sherrilyn.

10:55:43

IFILLWell, that goes pretty far afield. But I -- you know, I do think that it's critically important that we recognize that the allegations that are being made in this case are really not just about partisanship. I think that's the shorthand. I think it's easy to say, you know, if you're on the left, then you want Justice Thomas to recuse himself. If you're on the right, you want Justice Kagan.

10:56:00

IFILLI really do think we have to take very seriously the allegations that are raised in The New Yorker article that Jeffrey Toobin wrote. I think anybody reading that would really be concerned about why Justice Thomas would allow himself to be in the position in which he's essentially throwing gasoline on the fire.

10:56:16

REHMAll right. Jeffrey Toobin, last quick word.

10:56:18

TOOBINWell, I wrote that article, and I'm not that concerned.

10:56:21

TOOBINSo, anyway, I think Prof. Ifill makes a good point, that it would be good to have clear rules. But I'm not sure. I'm not worried that they're being broken very often these days, whatever they are.

10:56:37

REHMAnd maybe I'll give you the last word, Jeffrey Rosen.

10:56:41

ROSENCongress could do it. The separation of powers' question is interesting. They could require a process for reviewing these judges who refuse to step down. I was shocked in law school to find out that Congress can strip the court of jurisdiction over cases 'cause it disagrees. It can change the size of the court. If they can do all those things, it can certainly impose on the Code of Judicial Conduct.

10:57:00

REHMJeffrey Rosen, George Washington University School of Law, Sherrilyn Ifill, University of Maryland School of Law, Jeffrey Toobin, staff writer at The New Yorker, senior legal analyst at CNN and author of the "The Nine: Inside the Secret World of the Supreme Court." Thank you all so much.

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